69 Misc. 2d 299 | N.Y. App. Term. | 1972
Plaintiff conceded that it certified and retained a check marked “ Payment in Pull” enclosed in a covering letter setting forth and itemizing the deductions claimed and stating the check would constitute full and final payment of the account. The certification of the check was an acceptance thereof by plaintiff (Uniform Commercial Code, § 3-411, subd. [1]; Welch v. Bank of Manhattan Co., 264 App. Div. 906), and its retention constituted an accord and satisfaction of plaintiff’s claim. In our opinion, the letter indicates a bona fide dispute as to an unliquidated sum, and plaintiff was obligated to return the check for the lesser sum or be bound by the conditions imposed by defendant (Hudson v. Yonkers Fruit Co., 258 N. Y. 168; cf. Carlton Credit Corp. v. Atlantic Refining Co., 12 A D 2d 613, affd. 10 N Y 2d 723; Capitol Coal Corp. v. Juneglory Realty Corp., 156 Misc. 631). The order denying defendant’s motion for summary judgment should be unanimously reversed, with $10 costs to defendant, motion granted and complaint dismissed.
Concur — Hogan, P. J., Glickman and McCullough, J J.
Order reversed, etc.